There is quite a bit of mystery surrounding probate. What is it? Do I need to know what it is? Let's answer these questions and a couple more for good measure.
What is probate?
First off, if you have opted for a last will and testament rather than a trust, your estate is most likely going through probate after you die.
Probate is a court procedure used to prove the validity of a last will and testament, confirm and appoint the personal representative (also known as executor), and administer the estate of a decedent. Once the personal representative (PR) is confirmed and appointed by the Court, the PR can move forward with sending out required notices, opening an estate account, paying any outstanding bills of the decedent, making distributions to beneficiaries and all other PR duties. PRs will often hire an attorney to guide the PR through the process.
The Court will issue letters testamentary to the PR at the start of the probate. Letters testamentary are single-page documents confirming the authority of the PR to act on behalf of the estate. The PR will often need to present a letter testamentary to carry out estate duties. For example, if the decedent wanted to leave a home to his/her/their beneficiary, the PR has the authority to sign off on the deed transferring to the beneficiary and will need to record a letter testamentary along with the new deed.
What if the decedent did not prepare a last will and testament?
If the decedent did not prepare a last will and testament, the process to open probate becomes a bit more complicated, longer and costly. The executor is referred to as the administrator. The Court will issue letters of administration rather than letters testamentary.
Without a last will and testament, the individual (petitioner) seeking to be appointed as administrator must either arrange for a hearing and send notice to heirs or obtain waivers from heirs in order to administer the estate efficiently. In some cases, the petitioner may need to post a bond as well.
In order of priority, the following are able to petition the Court to be the administrator of the estate within 40 days of the decedent's date of death: the surviving spouse, children, parents, siblings, grandchildren, and nieces and nephews. RCW 11.28.120. If there is still no administrator after the 40 day period, almost anyone can petition the court to become estate administrator.
Do I need to know what probate is?
Having an overall understanding of probate can be helpful because most will have some type of encounter with probate at least once. Perhaps you are listed as the PR in a last will and testament or you are listed as a beneficiary. Or maybe you own property with a spouse, partner, friend, or family member? Probate is the key to making sure that assets are transferred from the decedent's estate to the decedent's beneficiaries.
What if I do not want my estate to go through probate?
Probate is not a dirty word, especially in Washington State. Washington's probate process is one of most streamlined in the nation. That being said, there are ways to avoid it.
Including a revocable living trust as part of your estate plan is one of the main ways to avoid probate. However, the set up for a revocable living trust is much more involved than that of a last will and testament and having the guidance of an attorney is advised. Further, maintenance and upkeep of a revocable living trust is ongoing and failure to keep up with the trust can result in probate.
Is the PR the only beneficiary of the estate?
It depends. The PR is not automatically a beneficiary but can be compensated by the estate for carrying out PR duties. The last will and testament might also list the PR as a beneficiary. In those cases, the PR would receive compensation as PR in addition to his/her/their beneficiary distribution.
Have any other probate questions? Schedule your consultation with our office to speak directly with one of our attorneys. Schedule.
Disclaimer: The purpose of this post is to provide general information and a general understanding of the law, not to provide specific legal advice. By accessing this blog site you understand that there is no attorney-client relationship between you and Sekhon Law, PLLC. This post should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.